At a press conference to mark his first 100 days in office, President Obama declared, “We have rejected the false choice between our security and our ideals by closing the detention center at Guantánamo Bay and banning torture without exception.” I have looked at the President’s misleading statement about Guantánamo, and analyzed his progress — or lack of it — in closing the prison in a previous article, and in this second article I’m going to focus on his assertion that the new administration has been responsible for “banning torture without exception.”

On the surface, Obama appears to have been true to his word. In two Executive Orders issued on his second day in office (along with an order relating to the closure of Guantánamo), he established that the questioning of prisoners by any US government agency (including the CIA) must follow the interrogation guidelines laid down in the Army Field Manual, which guarantees humane treatment under the Geneva Conventions, and also required the CIA to close any still-existing secret prisons.

This order also established a Special Interagency Task Force on Interrogation and Transfer Policies, to evaluate “whether the interrogation practices and techniques in the Army Field Manual, when employed by departments or agencies outside the military, provide an appropriate means of acquiring the intelligence necessary to protect the Nation, and, if warranted, to recommend any additional or different guidelines for other departments or agencies.” This task force was also charged with evaluating “the practices of transferring individuals to other nations,” to ensure that they do not face torture.

Allied to this, in some ways, is the other Executive Order establishing another Special Interagency Task Force to provide an overview of detention policy options, which was charged with reviewing the “lawful options” available to government with respect to the “apprehension, detention, trial, transfer, release, or other disposition of individuals captured or apprehended in connection with armed conflicts and counter-terrorism operations.”

These two task forces have until the end of July to deliver their reports, but while the President is undoubtedly to be commended for drawing a clear distinction between himself and his predecessor regarding the broad outlines of detention and interrogation policies, critics have already noted a few worrying signs that certain loopholes may have been left open.

Appendix M of the Army Field Manual

One of these concerns the Army Field Manual. Reintroducing it as the benchmark for military interrogations, for example, is clearly necessary to call a halt to the licensed sadism of the years when Donald Rumsfeld was defense secretary, but Jeff Kaye, psychologist and anti-torture blogger, raised concerns in January about part of the manual, Appendix M, which, as he described it, authorizes the use of specific torture techniques used in the “War on Terror,” including “solitary confinement, perceptual or sensory deprivation, sleep deprivation, the induction of fear and hopelessness, and the likely use of sensory overload, temperature or environmental manipulation.” Kaye’s concerns have been picked up by human rights organizations, including Amnesty International, which mentioned, in its review of Obama’s first 100 days (PDF), its disappointment that the administration was “endorsing without qualification” a document “which permits prolonged sleep deprivation, isolation and manipulation of a detainee’s fears contrary to the international ban on torture.”

This was certainly not how the military saw it, when the new Army Field Manual was issued in September 2006. At a press conference, Lt. Gen. Jeff Kimmons, the Army G-2 senior intelligence officer, specifically addressed concerns about Appendix M. As Kimmons described it, “Our four-star combatant commanders also specifically requested, based on battlefield experience, that we include one restricted technique called separation, for use on a by-exception basis only with unlawful enemy combatants. That is, it’s not authorized for use on prisoners of war and other protected persons.”

Kimmons proceeded to explain, “Separation allows interrogators to keep unlawful enemy combatants apart from each other as a normal part of the interrogation process, so they can’t coordinate their stories and so that we can compare answers to questions that interrogators have posed to each other without there having been collusion. It’s for the same reason that police keep murder suspects separated while they’re questioning them, although this is within an interrogation context.”

On the surface, Kimmons’s explanation seemed reasonable enough, but Kaye pointed out that it was, in fact, “inconsistent with the explanation for separation given in the current Army Field Manual,” in which the technique is not about the “normal interrogation process,” as the following passage makes clear (emphasis added): “Separation should be used as part of a well-orchestrated strategy involving the innovative application of unrestricted approach techniques. Separation requires special approval, judicious execution, special control measures and rigorous oversight.”

It may be, as a former intelligence officer noted on his blog (Decline and Fall), that “separation” can only be approved by a General, and, “given the political climate” regarding detainee abuse, would be “very hard to obtain,” but I have to admit that I fail to find it reassuring that techniques that bear more than a passing resemblance to those that drowned the “War on Terror” in a morass of torture and abuse should be sanctioned at all, especially as “separation” is so clearly described as only forming part of an unspecified program involving, as I highlighted above, “the innovative application of unrestricted approach techniques,” and, of course, because it is specifically targeted at prisoners regarded as being outside the reach of the Geneva Conventions (“unlawful enemy combatants,” in the Bush administration’s parlance).

Under Obama, we are led to believe that the Geneva Conventions will, henceforth, apply to all prisoners held by U.S. forces, but, as I explain below, there are other reasons for believing that a loophole has been left open for the possible detention of future “illegal enemy combatants.”

“Extraordinary rendition”

My concerns about this possibility center on the Obama administration’s review of the detention and transfer of prisoners; in other words, those parts of the policy directed towards appraising the system of “extraordinary rendition” developed by the Bush administration. In its review of Obama’s first 100 days, Amnesty International singled out “the possibility of the CIA abducting and detaining people in ‘short-term transitory’ facilities” as an unacceptable loophole. This came from an otherwise laudable announcement a month ago by the CIA’s new director, Leon Panetta, in which Panetta stated, “CIA no longer operates detention facilities or black sites and has proposed a plan to decommission the remaining sites,” but added that the agency “retains the authority to detain individuals on a short-term transitory basis.”

Realistically, it is hard to argue with the agency having the opportunity to hold prisoners on a temporary basis, especially if, as Panetta also stated, “Under the Executive Order, the CIA does not employ any of the enhanced interrogation techniques that were authorized by the Department of Justice from 2002 to 2009.” What is worrying, however, is the suggestion that certain “black sites” were still open just a month ago, and this comment becomes more troublesome when analyzed in connection with Panetta’s additional comments about the agency’s authority to hold prisoners on a short-term basis. Although he wrote that no detentions had occurred “since I have become Director,” he added, “We anticipate that we would quickly turn over any person in our custody to U.S. military authorities or to their country of jurisdiction, depending on the situation.”

I’ve highlighted the phrase that troubles me, as it undoubtedly indicates that, were certain situations to arise in future, the CIA is prepared to transfer prisoners to third countries, where, very possibly, they would face the risk of torture, and the only logical conclusion I can draw is that, essentially, the Obama administration’s only real problem with “extraordinary rendition” is one of scale. The Bush administration’s industrial-scale rendition policies have been banished, but the prospect of limited rendition — to third countries rather than to the U.S. court system, as would surely be more acceptable — is being kept as a possible option.

The Office of Legal Counsel’s torture memos

In some quarters, it has been suggested that the Obama administration’s decision, three weeks ago, to release four previously classified memos issued by the Justice Department’s Office of Legal Counsel in 2002 and 2005 (which purported to justify the use of torture by the CIA) was an important gesture in signaling a break with the previous administration. And in some ways it was, of course, but it should also be remembered that the memos were not released spontaneously, but as the result of a pending lawsuit by the American Civil Liberties Union.

It was also clear that the President was unsure how to play the memos’ release. Both he and Attorney General Eric Holder went out of their way to pledge that no one would be prosecuted for following orders. Obama said, “In releasing these memos, it is our intention to assure those who carrying out their duties relying in good faith upon the legal advice from the Department of Justice that they will not be subject to prosecution,” and, in a similar vein, Holder added, “It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department.”

This was understandable in the sense that operatives cannot necessarily be required to know whether or not the orders they are give are legally sound (although it should also be noted that many people knew when they were crossing a line, regardless of what they were told), but Obama then appeared to over-emphasize the point by visiting CIA headquarters, and telling a group of around 1,000 CIA employees, “What makes the United States special, and what makes you special, is precisely the fact that we are willing to uphold our values and ideals even when it’s hard — not just when it’s easy.” To my mind, this only ended up insulting those brave souls, like the military defense attorneys in the Military Commission trial system, or the prosecutors who resigned, or other officers who broke ranks to complain about the brutality and injustice of the “War on Terror,” and who, as a result, lost their jobs or otherwise endangered their careers.

It was also noticeable that, when polls seemed to indicate a shift towards a belief that a proper investigation of the Bush administration’s activities should take place, the President dropped his “looking forward and not backwards” mantra, and, while maintaining that “For those who carried out some of these operations within the four corners of legal opinions or guidance that had been provided from the White House, I do not think it’s appropriate for them to be prosecuted,” added, significantly, “With respect to those who formulated those legal decisions, I would say that that is going to be more of a decision for the Attorney General within the parameters of various laws, and I don’t want to prejudge that.”

What was particularly disappointing about all of this was that it showed an administration shifting about uneasily in an attempt to avoid confronting the compelling truth that senior Bush officials had admitted that they had been involved in torture, including waterboarding, that both Obama and Holder had stated publicly that waterboarding was torture, and that, as a result, because torture is a crime according to U.S. law, those responsible for implementing it must be held accountable.

However, while the administration’s approach to the release of the torture memos has sent out mixed messages, the President and the Justice Department have failed miserably to differentiate themselves from their predecessors on two other fronts relating to the use of torture in the “War on Terror.”

Blocking habeas corpus at Bagram

The first of these concerns Bagram, the prison at the U.S. airbase north of Kabul, Afghanistan, where an estimated 650 prisoners are held, in conditions that make Guantánamo — still an opaque establishment, despite the publicity surrounding it — look positively transparent. The prisoners at Guantánamo have secured several significant Supreme Court victories between 2004 and 2008 establishing that they have rights (however much the nation’s politicians attempted to remove them in the intervening years), and they have also had access to attorneys for over four years, have been through review processes that, however inadequate, have at least cleared some of them for release, and in recent months have, in a few cases, been ordered to be freed by U.S. courts.

At Bagram, however, none of these rights apply, but in February, when four habeas corpus cases filed on behalf of prisoners in Bagram reached a U.S. court, the Obama administration refused to distance itself from its predecessor’s blanket refusal to open up the prison to any kind of outside scrutiny, stating simply that, “Having considered the matter, the Government adheres to its previously articulated position.”

At the time, Judge John D. Bates had already suggested that he suspected that this was an unacceptable position to take, because Bagram appeared to be “a ‘black hole’ for detainees in a ‘law-free zone,’” but it was not until a month ago, having reviewed the arguments more comprehensively, that he understood that there were different categories of prisoner in Bagram: foreigners captured in other countries and “rendered” there, Afghans captured in other countries and “rendered” there, and Afghans captured in Afghanistan.

The latter category were (in theory, at least) connected to events in an ongoing war zone (and were, moreover, subject to delicate negotiations between the U.S. and Afghan governments), and Judge Bates reserved judgment about the Afghan captured in another country and “rendered” back to his home country, but he had no hesitation in declaring that the habeas rights granted by the Supreme Court to the Guantánamo prisoners last June in Boumediene v. Bush also extended to the foreign prisoners in Bagram, because, as he explained succinctly, “the detainees themselves as well as the rationale for detention are essentially the same.” In fact, as Judge Bates also noted (and as I explained in depth in an article at the time), the review process at Bagram is both “inadequate” and “more error-prone” than the tribunal process used at Guantánamo, and “falls well short of what the Supreme Court found inadequate at Guantánamo.”

This is not, strictly speaking, a story about torture, but it becomes one when the stories of these men are examined in any detail, and it becomes apparent that they were all held in a variety of secret prisons in Afghanistan, which were run by the CIA, or under the agency’s control, before they even arrived at Bagram. This knowledge, plus the implications of Judge Bates’s ruling, made it doubly shocking when, instead of abiding by the decision, the Obama administration appealed, prompting the New York Times to declare that the appeal “signaled that the administration was not backing down in its effort to maintain the power to imprison terrorism suspects for extended periods without judicial oversight.”

Blocking accountability for the CIA torture team’s “travel agent”

The other shock concerned a case initially brought by the ACLU against Jeppesen Dataplan, Inc., a Boeing subsidiary, on behalf of five prisoners subjected to “extraordinary rendition” and torture (Binyam Mohamed, Ahmed Agiza, Abou Elkassim Britel, Mohamed Farag Ahmad Bashmilah and Bisher al-Rawi — profiled here), who were suing the company for damages based on their involvement in their ordeal as the CIA’s “travel agent.” The Bush administration had intervened the first time round, invoking the little-used state secrets doctrine, and requesting a dismissal of the entire action before Jeppesen filed an answer to the complaint, and when the case was revived in February, the Obama administration again followed suit, slavishly copying its predecessor, as it did with Bagram.

To be fair, if the administration is determined not to hold operatives to account for crimes sanctioned at the highest level, then it was logical that it would intervene to prevent Jeppesen’s contractors from being held to account, but, when the case was reviewed by the Court of Appeal for the Ninth Circuit, the judges — led by Judge Michael Daly Hawkins, and also including Judges Mary M. Schroeder and William C. Canby, Jr. — were not concerned with politics, but with the law, and they had no hesitation in demolishing the government’s case.

Jeppesen’s involvement in, and knowledge of the rendition program was actually revealed in an extraordinary declaration by Sean Belcher, a former employee, who stated that the director of Jeppesen International Trip Planning Services, Bob Overby, had told him,

“We do all the extraordinary rendition flights,” which he also referred to as “the torture flights” or “spook flights.” Belcher stated that “there were some employees who were not comfortable with that aspect of Jeppesen’s business” because they knew “some of these flights end up” with the passengers being tortured. He stated that Overby had explained, “that’s just the way it is, we’re doing them” because “the rendition flights paid very well.”

This declaration was cited by the judges, without comment, in a footnote, but when it came the “relatively thin history” of the state secrets doctrine the judges were merciless, dismissing the government’s reliance on the two precedents — one involving a secret agreement between the government and a spy in the nineteenth century, the other (from 1953) with the prevention of “discovery of secret evidence when disclosure would threaten national security” — for their irrelevance to the Jeppesen case.

They did this first by pinpointing the “clear error” the District Court made when it initially dismissed the case, when the court declared, “inasmuch as the case involves ‘allegations’ about the conduct of the CIA, the privilege is invoked to protect information which is properly the subject of state secrets privilege,” and also declared that “the very subject matter of this case is a state secret.” In contrast, the Appeals Court judges insisted that “The subject matter … is not a state secret, and the case should not have been dismissed at the outset.”

Dismissing the government’s arguments, they concluded that, although the government may be entitled to protect certain evidence in the interests of national security, it has no justification for suppressing judicial scrutiny of the case as a whole, particularly because some information relating to the case is already publicly available, and also because what the government is actually trying to do, with no legal precedent whatsoever, is to impose a blanket ban on all discussion of potential government wrongdoing.

The ruling is peppered with passages chastising the government, and I recommend those with an interest to read the full ruling (PDF), but the following is particularly sharp:

At base, the government argues … that state secrets form the subject matter of a lawsuit, and therefore require dismissal, any time a complaint contains allegations, the truth or falsity of which has been classified as secret by a government official. The district court agreed, dismissing the case exclusively because it “involves allegations” about [secret] conduct by the CIA.” This sweeping characterization of the “very subject matter” bar has no logical limit — it would apply equally to suits by U.S. citizens, not just foreign nationals; and to secret conduct committed on U.S. soil, not just abroad. According to the government’s theory, the Judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law. (emphasis added)

Elsewhere, the judges drew on Boumediene, in which the Supreme Court stated that, while “[s]ecurity depends upon a sophisticated intelligence apparatus,” it “subsists, too, in fidelity to freedom’s first principles [including] freedom from arbitrary and unlawful restraint and the personal liberty that is secured by the adherence to the separation of powers.” They also drew on Hamdi v. Rumsfeld, another important Guantánamo case in the Supreme Court (in 2004), in which the justices stated, “Separation-of-powers concerns take on an especially important role in the context of secret Executive conduct. As the Founders of this nation knew well, arbitrary imprisonment and torture under any circumstance is a ‘gross and notorious … act of despotism.’”

I was also particularly impressed by the following passage:

If the simple fact that information is classified were enough to bring evidence containing that evidence within the scope of the [state secrets] privilege, then the entire state secrets inquiry — from determining which matters are secret to which disclosures pose a threat to national security — would fall exclusively to the Executive branch, in plain contravention of the Supreme Court’s admonition that “[j]udicial control over the evidence in a case cannot be abdicated to the caprice of executive officers” without “lead[ing] to intolerable abuses.” … A rule that categorically equated “classified” matters with “secret” matters would, for example, perversely encourage the President to classify politically embarrassing information simply to place it beyond the reach of judicial process.

What was notable about this passage was that it succinctly encapsulated the entire approach to “classified” information that was maintained by the Bush administration, and also mentioned invoking national security to prevent embarrassment — or, it could be said, to prevent the disclosure of crimes.

This kind of hyperbole, exercised to prevent embarrassment (or worse), was, I thought, the hidden sub-text of a shrill submission by CIA director Michael Hayden, moving for dismissal of the original complaint, when he claimed that disclosure of information relevant to the Jeppesen case “could be expected to cause serious — and in some instances, exceptionally grave — damage to the national security of the United States,” and the point was rammed home by the judges in a footnote citing a 1953 letter to President Eisenhower from Attorney General Herbert Brownwell, in which Brownwell wrote that classification procedures were then “so broadly drawn … as to make it possible for government officials to cover up their own mistakes and even their wrongdoing under the guise of protecting national security.”

It also brings me neatly to my conclusion. I understand that President Obama doesn’t want to rock the boat, endangering a fragile peace with the Republican party, in order to secure as much consensus as possible when so many other major policy decisions need to be made (and, perhaps, members of his own party need to be shielded from revelations of their knowledge of the grisly details of the “War on Terror”). However, as the 9th Circuit Court of Appeals has just demonstrated so admirably, by setting new rules for appropriate conduct while holding at bay any accountability for the Bush administration’s crimes, he is not only shielding those who are no longer in office from full disclosure of their activities — from the embarrassing to the depraved — but is also allowing himself to be infected by the same disdain for the separation of powers, and the same endorsement of unfettered Executive power, that was the Bush administration’s most toxic legacy for the values on which the republic was founded.

I’m still erring on the side of presuming that this is more to do with pragmatism than it is with deliberate, coldly conceived policy, but, like Judge John D. Bates and the judges of the 9th Circuit Court of Appeals, I’m beginning to run out of patience.